John Pickering and Partners news 2008 - mesothelioma-clarence-dock

Earlier this year, Mr Hughes’ claim went to trial under the expedited procedure at Liverpool District Registry.

This case was unusual since Mr Hughes had asbestos exposure in the 1980’s when most clients’ exposures takes place in the 50’s, 60’s and 70’s. The court had to consider the Regulations, Guidance and Codes of Practice applying in the 1980’s.

This was a contested case on the facts. The Judge had to consider what happened when two men worked at Clarence Dock Power Station in Liverpool stripping asbestos.

The legal question was - although the employers did provide some protection, was it sufficient? The factual question was - whose memory was playing tricks with them?

Mr Hughes sadly died a month after the trial. He was aged 64 and had been diagnosed with mesothelioma in March 2007. Compensation had been agreed subject to liability at £110,000 in his hand. He had already received Benefits and a payment under the 1979 Act. He had given his evidence by video several weeks before so didn’t have to take the stand at trial. Nevertheless, stoically, he attended the trial every day.

He was employed by Oldham Brothers, a scrap metal merchants, for about 4 years between 1982/83 and 1986/87. He was based at Clarence Dock Power Station which had been defunct for some time and had been purchased by Oldham Brothers.

Prior to commencing his work stripping asbestos lagging in the boiler room, Mr Hughes worked in the turbine hall and boiler room stripping non-ferrous metals. During that time he wasn’t provided with any respiratory protection. The Judge had to decide whether during that period there was any asbestos dust in the atmosphere.

After that, he worked alongside his colleague in a very large boiler room stripping asbestos lagging from a number of 80 feet boilers and from ancillary pipe work. It was common ground that their work released substantial quantities of dust containing asbestos. The main issue was whether the training given and the protection provided by the Defendant was sufficient so that they did not act negligently and/or in breach of their statutory duties.

Mr Hughes and his colleagues had made their own decontamination unit with a clean area, shower area and a dirty area made out of a ship’s container. There was a question as to whether or not there were proper seals between the dirty areas and the shower room and the shower room and the clean area. There were differing opinions as to whether or not the showers functioned and whether there was only cold water or hot and cold water provided.

Mr Hughes and his colleague were provided with overalls. Mr Hughes and his colleague said that these overalls often ripped and that contamination of clothes took place. However, there was a disagreement as to whether the men wore their own clothes underneath which became contaminated and then wore those clothes in the shower/clean area.

It was not in dispute that Mr Hughes and his colleague undertook stripping work without thoroughly soaking the asbestos and that the mask provided by the Defendant was fitted with a high efficiency filter and as such was an approved high efficiency respirator. However, one expert engineer considered that only an approved positive pressure powered respirator fitted with high efficiency filters was appropriate for the work that they were doing at the time that they were doing it and what was provided was not sufficient.

The mask provided had 2 types of filters, a pre-filter and a main filter. Both should have been replaced daily. Mr Hughes said the pre-filter was more or less replaced every day, however, the main filter was only replaced every 2 or 3 weeks. There was an argument about whether there was a plentiful supply of the main filters.

It was our case, on behalf of Mr Hughes, that a negative pressure mask was inadequate and that providing such a mask amounted to negligence and/or breach of statutory duty. The lagging contained chrysotile, amosite and crocidolite and there was no known medically safe level of asbestos exposure at that time.

In October 1981, the approved Code of Practice and Guidance Note “Work with asbestos insulation and asbestos coating” came into effect. The Code of Practice confirmed that: ‘exposure to all forms of asbestos dust is to be reduced to the minimum that is reasonably practical’. It continues - ‘‘…respiratory protective equipment should be provided and selection of it should be based upon the degree of the hazard, the degree of protection afforded, that it should fit and be suitable for the person.” For dry stripping, a high standard of approved respiratory protective equipment is required but the mask provided by the Defendant was only suitable when the asbestos dust does not exceed nor is it likely to exceed 180 fibres per millilitre when calculated in relation to a 4 hour reference period.

The judgement is comprehensive. The Judge accepted that Mr Hughes had no training or real knowledge of the dangers of asbestos. The company director was open that he didn’t know in 1982 that small amounts of asbestos could cause mesothelioma. Mr Hughes and his colleague were told that asbestos was dangerous but not how dangerous it was. The Judge found it unsurprising that the Claimant under estimated the risk to himself and so on occasions when his mask steamed up when first working with asbestos he took it off, but did not criticise him for this. The Judge felt that the state of knowledge of the Defendants was such that they did not appreciate that slight exposure could cause damage but importantly, they ought to have done.

The Judge held there was a clear breach of Regulation 8(3) of the 1969 Asbestos Regulations in allowing the Claimant to take off the mask throughout the job, and a breach of Regulation 8(1)(a) in failing to provide approved respiratory protective equipment.

He found that the mask provided was inadequate since a level of 180 asbestos fibres over 4 hours was regularly exceeded and that it contained amosite and crocidolite.

The Judge referred himself to the Guidance Note EH41 of 1985 that certain forms of dry stripping and any effective wet stripping required an approved positive pressure powered respirator. No other respirator will suffice.

Oldham Brothers had consulted with the Factory Inspectors at the time and the Judge accepted that at least one Inspector did specifically sanction the mask they provided. He found that either the Inspectorate erred or there was some cross wires. Although he found a breach of statutory duty, he did not find negligence against the Defendants on this point.

Oldham Brothers argued that Mr Hughes was partly to blame in that he took off his mask when it steamed up. The Judge found that since Mr Hughes did not know that slight exposure might be fatal and that he walked away from the immediate work area before removing to clean the mask that there should be no deduction for contributory negligence.

The Judge found that the filters did run out from time to time and that there were gaps around the sliding door in the decontamination unit, he found that the showers were fitted with a hot water provision but that it did not work. He found that on reasonably regular occasions contaminated clothes were worn and Mr Hughes breathed in dust from them. He found there was brushing up in the decontamination unit alongside the use of wet rags and that there was a breach of Regulation 10 of the 1969 Regulations. He found that Mr Hughes probably didn’t have asbestos exposure when removing ferrous metals.

In all of the above, the thread is the failure of both Oldham Brothers and the men to appreciate that what might be perceived as relatively minor exposure was potentially fatal.

“I am sure that I shall see many more people like Mr Hughes where the employer has not kept up with standards of health and safety. I am sure it is happening today in workplaces throughout the country through carelessness and to save time and money. Will we never learn?”

John Pickering and Partners LLP is a niche legal practice that has represented Claimants in the leading asbestos "test cases" in the last ten years. The firm represented Sylvia Barker in Barker v Corus (UK) Plc, a case that highlighted the legal tactics of employers and insurers trying to cut back their compensation liabilities to mesothelioma sufferers, and which prompted the amendment of the Compensation Act 2006 to ensure full compensation for mesothelioma claims. The firm represented two of the three Claimants in the Fairchild appeal, in which the insurance industry tried unsuccessfully to block compensation altogether for mesothelioma sufferers unable to identify which of two or more sources of asbestos exposure had caused their illness.

The firm represented Alice Jefferson, a mesothelioma sufferer, whose illness and compensation claim against Cape Asbestos were featured in the important documentary "Alice: A Fight For Life." Shown by Yorkshire Television in July 1982, the programme was an important catalyst for legal change and public awareness of the plight of the victims of asbestos.

If you need advice about an asbestos related illness, contact us now for information about making a claim for compensation.